Texas free to self-govern elections

Ruling aside, fight over maps apt to continue

AUSTIN — A U.S. Supreme Court decision means that Texas' controversial voter ID law will go into effect immediately but its electoral maps likely will still face legal battles.

"Both local jurisdictions and the state of Texas will be able to change voting laws without there being a delay to get the Department of Justice to sign off on their laws," Mark ­McKenzie, an assistant professor of political science at Texas Tech University, said about the Tuesday morning ruling.

The high court ruling struck down parts of sections 4 and 5 of the Voting Rights Act of 1965, which required nine states and counties in some other states to submit any changes in voting to the federal Justice Department for pre-clearance before the laws take effect. The sections cover electoral maps, which are redrawn every 10 years to reflect population and demographic changes in the census.

The sections were intended to address areas of the country, mostly southern states, that had a history of discrimination against minority voters. Texas was among the states requiring pre-clearance for voting changes, both on a state and local level.

The pre-clearance requirement created a turbulent election season in 2012 as the state failed to get pre-clearance for its first set of maps and then saw other maps hung up at two different federal court levels. Even though a set of maps given temporary approval by a federal court in San Antonio were adopted by the Legislature this month, the Mexican-American Legislative Caucus, which is a litigant in an ongoing court case challenging those maps, is exploring ways to continue its fight against the maps, which it argues are discriminatory.

"It's not a question of which maps, but which path of litigation," said Rep. Trey Martinez Fischer, D-San Antonio, the caucus chairman.

Section 4 of the Voting Rights Act provides the "coverage formula" for determining which states and counties need pre-clearance, and the majority opinion said the Section 4 formula needed to be updated because it is based on old data.

"The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years," the court syllabus to the opinion states. "The Government has a fallback argument — because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. … But history did not end in 1965."

Chief Justice John Roberts, supported by justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, wrote the majority opinion for the case, which is titled Shelby County vs. Holder. The case was decided on a 5-4 vote. Justice Ruth Bader Ginsburg, supported by justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, wrote the dissenting opinion.

"Largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers," Roberts wrote. "And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs."

Ginsburg in her dissent argued to continue pre-clearance as is.

"First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­sliding," she wrote.

Texas has had court challenges to its maps ever since pre-clearance first applied to Texas in 1971. The state approved temporary maps as permanent this month in an effort to avoid further litigation. The maps may still undergo court challenges because in a federal court in San Antonio, the maps are being challenged in a separate section of the Voting Rights Act.

However, voter ID laws that have been challenged in court after they passed during the last legislative session should go into effect immediately, according to statements sent out by Texas Attorney General Greg Abbott.

"Laws that apply unequally to just some states have no place in our nation. Today's ruling ensures that Texas is no longer one of just a few states that must seek approval from the federal government before its election laws can take effect," Abbott said in a statement. "With today's decision, the State's voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government."

The voter ID law requires a photo ID for voting. Conservatives believed the measure would protect against voter fraud. Democrats have generally thought the law discriminates against and will discourage participation by poor and minority voters.

Gov. Rick Perry framed the situation in terms of a victory for states' rights.

"Texas may now implement the will of the people without being subject to outdated and unnecessary oversight and the overreach of federal power," Perry said in a release.

Lisa Hernandez, a voting rights activist in the Corpus Christi area, said her area has been in need of pre-clearance protection. Nueces County, which includes Corpus Christi, underwent redistricting in which districts were rearranged after an initial denial of pre-clearance from the U.S. Department of Justice and a lawsuit that was later dropped after changes to the county maps.

"We're ground zero in terms of Section 5 protection," Hernandez said. "The voter dilution could've been approved" if not for the protection of pre-clearance.

State senators have said the rearrangement of congressional districts in that area diluted about 200,000 Latino voters.

Sen. Kel Seliger, R-Amarillo, who had been the chairman of the select Senate Redistricting Committee, said there hasn't been any talks about reverting to maps from 2011 that lawmakers drew but which federal courts rejected.

"Discrimination on racial grounds is still going to be illegal," Seliger said. "That doesn't change, nor should it."

McKenzie, the Texas Tech professor, said the U.S. Supreme Court had warned Congress in an earlier court case that the formula might need updating. The formula includes criteria such as 1960s and '70s voter turnout and whether areas had literacy tests for voting.

Congress could vote to update the formula, and pre-clearance would be required again, McKenzie said.

"Congress has their work to do," Martinez Fischer said.

Matthew Waller covers the Legislature for Scripps Newspapers and works in Austin. Contact him at mwaller@gosanangelo.com or follow him on Twitter @waller_matthew.